The Supreme Court of Vermont Law Blog: An on-going conversation about the practice of law in Vermont, featuring summaries of Vermont Supreme Court decisions, a dollop of lampooning, legal analysis, and a charming aggregation of creative thought.

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Saturday, October 4, 2014

You Can Keep Your Genes On...

In a landmark decision, the SCOV has deemed a section of Vermont’s DNA collection statute to be an unconstitutional invasion of personal privacy under the Vermont Constitution. The section of the statute at issue amends 20 V.S.A. § 1933(a)(2), and mandates DNA collection and analysis from anyone arraigned for a felony. In several recent trial-court cases, criminal defendants challenged the constitutionality of the amendment. The trial courts hearing those cases found, across the board, the language at issue to be unconstitutional. In this consolidated appeal, the SCOV affirmed the rulings of those trial courts, finding the recent amendment to be in violation of the Vermont Constitution. Take that privacy-rights infringers!

As a point of (significant) interest, the U.S. Supreme Court was faced with a similar case last year, and found warrantless, suspicionless DNA collection from individuals arrested for violent crimes or burglary to be perfectly legal under the Fourth Amendment of the U.S. Constitution. From the outset, the SCOV makes very clear that its ruling only pertains to the statute’s constitutionality under Article 11 of the Vermont Constitution, which has been found to provide greater protection than its federal counterpart. In addition to the heightened protection provided by the Vermont Constitution, the SCOV also found the statute in this case differed substantially from the Maryland DNA-collection statute on which the SCOTUS ruled.

To set the stage: Vermont’s DNA-collection statute creates a DNA data bank, which contains DNA samples, and a DNA database, which contains the DNA records or “profiles” derived from those samples. In the original statute, DNA was collected and analyzed from anyone convicted of a statutorily defined violent crime. In 2005 the statute was enhanced to require collection and analysis of DNA from anyone convicted of any felony or attempted felony, violent or not. In 2009 the reach of the statute extended even further to require the collection of DNA from “[a] person for whom the court has determined at arraignment there is probable cause that the person has committed a felony in this state on or after July 1, 2011.” Suddenly DNA collection was required from those charged with, but not yet convicted of, a felony. It is this 2009 amendment the SCOV found to be unconstitutional.

For readers concerned with protecting their individual physical autonomy, the SCOV affirmed that yes, in fact individuals have a certain expectation of privacy in their body cavities. Under Article 11 of the Vermont Constitution, which protects against unlawful search and seizure, the collection of DNA constitutes two separate “searches” of an individual: first the taking of the sample by blood-draw or buccal swab, and then the analysis and creation of a profile stored in the DNA database. Article 11 requires both a warrant and probable cause before a search can be conducted.

The SCOV’s opinion makes quick work of a few important issues: (a) Defendants have an expectation of privacy in their oral cavities and in any genetic information contained therein; (b) the DNA-collection statute acts as a “general” warrant, allowing for searches without individual warrants under certain circumstances; (c) the presumptive unconstitutionality of warrantless searches trumps any deference to the statute; and (d) because defendants have an undisputed expectation of privacy in their orifices and genetic juices, the state has the burden of proving that the statute allowing police officers to search and seize defendants’ DNA is in fact constitutional. That being said, the SCOV acknowledged that there are instances in which warrantless searches are allowed.

Warrantless searches are allowable when certain “special needs” make the warrant and probable cause requirements impracticable. The SCOV has found “special needs” beyond the ordinary needs of law enforcement in certain circumstances (searching prison inmates’ cells, seizure of a gun from the car of an intoxicated driver, warrantless search of a probationer’s home), including in the case of DNA sampling from convicted felons. In a previous decision upholding the section of Vermont’s DNA-collection statute allowing collection of DNA from convicted felons, the state proved a “special need” beyond the needs of ordinary law enforcement to create a DNA database to assist in the identification of persons at future crime scenes, identify missing person, and deter criminal activity.

The SCOV doesn’t delve into whether there are any different “special needs” at play; they acknowledge that the same “special needs” that justified the collection of DNA from convicted felons applies here. The Court then jumps to the balancing test and determines that regardless of a “special need,” the individual privacy interests at stake outweigh any governmental interest in the DNA of a person arraigned on a felony charge.

While the cheek swipe needed to obtain the DNA may be momentarily and minimally intrusive, the Court acknowledges that the creation of a searchable record of intimate identifying genetic information, information previously safely hidden in double helix, is a more serious invasion of privacy. In the previous decision upholding DNA collection from convicted felons, the SCOV found that the “special need” for DNA collection, compounded with administrative guidelines preventing wrongful disclosure of private genetic information, justified the state’s interest in DNA-sampling.

The Court reaches a different conclusion here. The SCOV again acknowledges the existence of a “special need” to collect preconviction DNA for the purposes of identifying perpetrators at future crime scenes, identifying missing persons, and deterring criminal conduct. But the meat of the decision is found in the Court’s weighing of the state’s interests against the privacy interests of yet-to-be-convicted defendants. The Court observes that the amendment at issue simply adjusts the time frame for the collection of DNA. Individuals convicted of a felony will have their DNA sampled anyway under the pre-amendment law. The amendment really effects those arraigned but never convicted, who would not otherwise be subject to DNA sampling. The Court notes that the state’s interest in the genetic material of individuals not yet convicted is undermined by the legislative requirement that the state expunge the genetic records of anyone arraigned but not subsequently convicted. This requirement indicates that the privacy interests of those found to be innocent outweigh the state’s interest in maintaining a database of DNA records. So the law gives great weight to the privacy interests of the innocent; what about the privacy interests of the yet-to-be-found-guilty?

The SCOV first defines the privacy interests of the pre-conviction defendant, and then weighs those against the interests of the state. The Court acknowledges that the preconviction defendant has greater privacy rights than individuals who have been convicted, because the preconviction defendant maintains a presumption of innocence. But the preconviciton defendant has a lesser expectation of privacy than the general population; after all they face criminal charges, bail, physically restrictive conditions of release, and possibly temporary incarceration. The Court also readily acknowledges that a (perhaps significant) percentage of defendants arraigned, and DNA-sampled under the statutory provision at issue, will never be convicted of a qualifying offense, and once found innocent the statute mandates that their records be expunged from the DNA database. This again raises the question at the heart of this case: why do the innocent have a greater right of privacy in their genetic material than the not-yet-guilty?

According to the SCOV, they don’t. Yes the state has a valid interest in identifying the defendants in its custody, but that is the extent of the state’s interest in preconviction DNA samples. The state’s other special interests (investigation and identification at future crimes scenes) are already fulfilled by statutorily permissible post-conviction DNA sampling; thus preconviction sampling fulfills a very limited need of the state, to identify the defendants already in custody. And that identification can be easily done via less invasive methods such as, say, fingerprinting. DNA sampling, and the subsequent analysis of that DNA, is physically intrusive and reveals far more personal information about an individual than their identity. The Court notes that in addition to creating a profile from the DNA sample, the state retains the physical sample itself, raising fears about future improper use of sequestered genetic material. In other words, this is a significant invasion of privacy, not to be taken lightly. Furthermore, preconviction defendants have a substantial privacy interest in their own DNA, as indicated by their statutory right to have their records expunged if the case ends with an acquittal.

Given the state’s limited interest in preconviction DNA, and the preconviction defendant’s substantial privacy interest in their genetic material, the SCOV found the individual privacy interests outweighed the state’s interest, and ruled 20 V.S.A. § 1933(a)(2) to be in violation of the Vermont Constitution.

In its decision, the SCOV goes into a rather lengthy analysis distinguishing this case from the recent SCOTUS decision finding pre-conviction DNA sampling to be permissible under the U.S. Constitution. SCOTUS ruled that a Maryland statute requiring DNA-testing of anyone arrested for a felony did not violate the Fourth Amendment. In conducting the same balancing test as the SCOV, the SCOTUS found the DNA-collecting cheek swab to be a negligible intrusion, particularly given the reduced privacy rights of individuals arrested under felony charges. Therefore the government’s interest in safely and accurately processing individuals arrested under felony charges outweighed the privacy interests of the arrestee. The SCOV identified three major distinctions between the SCOTUS decision and the decision here, justifying its ruling.

First of all, the Maryland statute was triggered by arrest, where the Vermont statute was triggered by the finding of probable cause at arraignment for a felony. The defendant in Vermont may never have been arrested or detained when they are subject to the offending DNA-sampling. Secondly, there is a reduced need for extensive identification information in a state like Vermont where non-arrest or pretrial release is the norm; the photographs and fingerprints currently required are adequate for the purposes of identification.

And thirdly, permissible searches incident to arrest are more narrowly defined under the Vermont Constitution than under the U.S. Constitution. The SCOV’s jurisprudence allows a warrantless search incident to arrest only in the presence of exigent circumstances. For example, the SCOTUS has held that warrantless searches of the passenger compartment of a car are permissible whenever an occupant of the vehicle has been lawfully arrested; the SCOV on the other hand holds that the arresting officer may only search the car when the search is necessary because of exigent circumstances, such as securing the safety of officers, or preserving evidence. The SCOV found the Supreme Court’s ruling in the case of the Maryland statute to be a broad expansion of warrantless search power, which the SCOV was not inclined to entertain. No exigent circumstances necessitate the collection of genetic material, since photographs and fingerprinting have proved sufficient to identify defendants at arraignment. And so Vermont continues to draw its own line in the sand when it comes to the constitutionality of warrantless search and seizure.

The two dissenting Justices in this case make a pointed argument. The dissent argues that the same reasoning the Court relied upon to find DNA-sampling of convicted felons permissible applies in this case, making the majority’s conclusion irrational, discordant jurisprudence. The same “special needs” of law enforcement are found, the same minimal intrusion of the cheek swab, the same reduced privacy interests of felony arraignees. The only difference here is the contingent being sampled, which has expanded from felony convicts to felony araignees. The dissent argues that the majority opinion downplays the importance of DNA as a valuable tool for law enforcement, helping to “identify perpetrators at crime scenes, exonerate the innocent, deter crime, and identify missing persons.” The DNA is not used to target felony arraignees the dissent contends, it is used for the specific and important purposes identified above.

Essentially the dissent argues for the value of DNA samples as a tool in law enforcement; as the most accurate means of identifying defendants, and solving past and future crimes. They raise the question- if DNA provides the same identifying information as fingerprints, why do defendants have a greater privacy interest in the DNA, which takes a swipe of the cheek to collect, versus the “swipe” of the finger required for fingerprinting? Defendants, the dissent argues, have been taken into legal custody for probable cause and have no privacy interest in their physically identifying information; certainly no interests that supersede the state’s interest in identifying offenders. And wouldn’t a defendant want the most accurate method of identification used anyway, when their liberty is at stake? Never before, they insist, has defendants’ presumption of innocence outweighed the State’s ability to accurately identify those in its custody. The dissent argues that the majority, in its balancing test, erroneously weighed in favor of defendants.

The opinion is littered with interesting and/or worrisome concepts: the long-term retention of DNA samples, the use and abuse of DNA, the potential use of the DNA database to perpetrate gene-based discrimination, a Pandora’s Box of crazy-making constitutional issues. The final ruling is narrow: one section of the statute found impermissible under one state’s constitution. But in an age when our most private matters, including our genetic makeup, are becoming increasingly accessible to the public, it’s a notable stand in favor of embattled individual privacy interests.